Burfitt v. Bear et al

Filing 60

ORDER denying in part 54 Plaintiff's Construed Motion for Discovery/Inspection except that Defendants shall respond to the construed written request for the physical dimensions of the two rooms in which the incidents that remain the basis of t his lawsuit occurred; denying 55 Plaintiff's Motion to Amend/Correct Complaint as improperly filed, but the Clerk of Court is directed to re-file the same motion in Case No. 1:16-cv-00776 for further review as appropriate. Signed by Magistrate Judge Stephanie K. Bowman on 10/6/2016. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

LAWRENCE R. BURFITT,

Case No. 1:15-CV-730

Plaintiff,

Dlott, J.
Bowman, M.J.

v.
SGT. BEAR, et al.,
Defendants.

OPINION AND ORDER
I.

Background

Plaintiff, a prisoner who proceeds pro se, initiated this litigation on November 12,
2015, alleging that multiple Defendants have violated his constitutional rights while he
has been incarcerated at the Southern Ohio Correctional Facility.

Plaintiff’s initial

complaint alleged that he was placed in a K-4, RTU block for severely mentally ill
inmates for no justifiable reason. Plaintiff complained about several incidents that
allegedly took place in February or March of 2015, in which Plaintiff alleged he was
verbally and physically assaulted, that the water in his cell was turned off and dinner
trays were refused. Plaintiff also raised claims regarding incidents that allegedly
occurred in early May, 2015, during and shortly after a Rules Infraction Board (“RIB”)
hearing, in which Plaintiff asserts he was again physically assaulted, his water turned
off, and meals refused. Plaintiff’s initial complaint sought punitive and compensatory
damages as well as injunctive relief.

Upon initial review, the Court dismissed multiple claims against six Defendants,
but permitted Plaintiff to proceed with a claim of excessive force and a failure to protect
claim in violation of the Eighth Amendment against five Defendants. (Docs. 5, 11).
However, more recently, the Court dismissed all claims against two of the five
Defendants. Therefore, the only Eighth Amendment claims that remain are asserted
against Defendants Bear, Sgt. Sammons, and Sgt. Felts concerning two incidents
alleged to have occurred on March 27, 20154 while Plaintiff was in Sgt. Bear’s office,
and on May 7, 2015, in an RIB hearing “interviewing room” in which Sgt. Sammons and
Sgt. Felts were both present. (Docs. 52, 59).
On August 16, 2016, Plaintiff filed a “Petition” or Motion for Inspection (Doc. 54),
to which Defendants have filed a response in opposition and motion to quash. (Doc.
58). Additionally, the docket reflects that Plaintiff inadvertently filed a motion in the
above-captioned case that he intended to file in a separate case. (Doc. 55). Finally,
Plaintiff filed a “letter” that does not require any action from this Court. (Doc. 57).
II.

Analysis
A. Motion To Compel Discovery/Inspection

Plaintiff’s August 16 Petition/Motion requests an inspection and “caption” [sic] of
things pertinent to trial. 1 Specifically, Plaintiff requests “inspection and caption” of
Defendants Bear and Felts’ offices, the retention of an investigator on Plaintiff’s behalf,
“inspection and caption” of all areas where force was applied to Plaintiff on March 27,
2015 and May 7, 2015 including his escort to the J-2 strip cage, his escort to J-4 cell

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In the same motion, Plaintiff complains about conditions of his confinement, including the alleged lack of
sprinklers in cells, ventilation in the unit where mentally ill inmates are housed, and general mistreatment
of other prisoners and himself. None of these allegations are relevant to the pending discovery requests
or to the claims in this case, and therefore are not further considered.

2

#43, the RIB room, the hallway and ramp used to escort Palintiff to J-1, and finally,
disciplinary records of all “related defendants.” (Doc. 54).
In response to the construed motion to compel inspection or discovery,
Defendants filed a motion to quash on September 6, 2016, 2 arguing that Plaintiff’s
requests are unduly burdensome, onerous, vague, ambiguous, overly broad and largely
unintelligible. The undersigned generally agrees, and therefore will deny Plaintiff’s
discovery motion, with one small exception.
As a preliminary matter, Plaintiff states that the Defendants denied his discovery
requests but fails to certify that he has exhausted all extrajudicial means for resolving
his dispute, as required by Local Rule 37.1, and Rule 37 of the Federal Rules of Civil
Procedure. This Court has previously cautioned Plaintiff that his pro se status does not
excuse full compliance with the rules of civil procedure, including Local Rule 37.1 and
Rule 37 of the Federal Rules of Civil Procedure. (See Doc. 53).

Plaintiff’s discovery

motion could be denied on procedural grounds alone.
However, given the breadth, scope, and general irrelevance of Plaintiff’s request,
the Court will not require pro forma compliance with the referenced rules. Instead,
Plaintiff’s motion will be (mostly) denied as overbroad, unduly burdensome, and
irrelevant under Rule 34 and Rule 26 of the Federal Rules of Civil Procedure.
Pursuant to Rule 34(b)(1), a request for inspection
(a) must describe with reasonable particularity each item or category of
times to be inspected; (b) must specify a reasonable time, place, and
manner for the inspection and for performing the related acts; and may
specify the form or forms in which electronically stored information is to be
produced.
Federal Rule of Civil Procedure 34(b)(1). (Emphasis added).
2

Although the response is captioned as a “motion,” it was docketed as a response in opposition.

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Defendants first object to the discovery requests as vague and overbroad. It is
unclear what Plaintiff intends by the phrase “caption of things,” or precisely what items
he seeks to inspect.

A request to review any video recordings that may exist

concerning the two incidents that allegedly occurred in Sgt. Bear’s office and in an RIB
interview room on March 27 and May 7, 2015 would be sufficiently specific, that is not
what Plaintiff has requested. Plaintiff’s broad and ambiguously worded “inspection and
caption” clearly goes well beyond the scope of the relatively limited remaining two
Eighth Amendment claims.
Plaintiff also requests Defendants’ disciplinary records and measurements of
office space and “rib room.” While an argument could be made that some portion of the
three remaining Defendants’ disciplinary records could be relevant, Plaintiff’s present
request is vague and overbroad. The request is not limited by year, does not articulate
the relevant scope of disciplinary records, and does not even identify any individual
Defendant. Although the request for room measurements is also vague, given that the
two incidents are alleged to have occurred within the confines of two specific rooms,
and without any suggestion of undue burden by Defendants, the undersigned will order
that limited information to be produced.
In addition to objecting to most of the requests as overbroad, Defendants
reasonably object to the requests on grounds of relevance and as unduly burdensome.
Rule 26 imposes limits on discovery by requiring both relevance and proportionality.
[T]he scope of discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy,
the parties’ relative access to relevant information, the parties’ resources,
the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
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Federal Rule of Civil Procedure 26(b)(2)(C). (Emphasis added).
Plaintiff asks this Court to require Defendants to permit him to “inspect” broad
and poorly described areas of the prison, and for “caption of things.” In support of their
argument that Plaintiff’s request would impose an undue burden on prison
administration, Defendants state that Plaintiff has been “confined to segregation for the
past year and a half” based on his proclivity for “aggressive and violent behavior.” (Doc.
58, PageID 303). 3 According to Defendants, Plaintiff remains a high security risk who
“spends 23-24 hours a day in his cell, leaving only to recreate in a cage or to shower.”
(Id.) He is “escorted to the recreation cage or to the shower while shackled and cuffed
from behind.” (Id.) In other words, Plaintiff’s movement “is much more restricted than
that of the general population prisoners who are …housed at this maximum security
facility.” (Id.) Thus, Defendants argue in part that to allow Plaintiff free reign to inspect
so many areas of the prison – or even to escort Plaintiff to many areas while he is
appropriately shackled and restrained – would be unduly burdensome.
In addition, Defendants maintain that Plaintiff’s requests for inspection are not
relevant to any claim or defense yet presented in this case. The undersigned accepts
counsel’s representations that permitting Plaintiff access to so many areas of the prison
would be unduly burdensome, given Plaintiff’s security risk and the lack of any showing
of relevance. Plaintiff’s sole remaining claims are that three Defendants violated his
Eighth Amendment rights during the course of two incidents that are alleged to have
occurred within two enclosed rooms (Bear’s office and an interview room) on March 27

3

Although the Defendants have not offered specific evidence to support their representations concerning
Plaintiff’s confinement to segregation and security risk, the undersigned accepts counsel’s statements as
an officer of the Court, limited to the context of this non-dispositive discovery motion.

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and May 7, 2015. The relevance of an inspection of even the two rooms is not evident
to the Court, and the relevance of other areas of the prison is inconceivable.
Because

Plaintiff’s

discovery

requests

are

vague,

overbroad,

unduly

burdensome, and irrelevant, they will be denied except that Defendants will be directed
to provide to Plaintiff the physical dimensions of the two rooms in which the March 27
and May 7, 2015 incidents are alleged to have occurred.
B. Plaintiff’s Improper Correspondence
Plaintiff has filed a “letter” (Doc. 57) with the Clerk of Court that is not authorized
under any applicable civil rules of procedure. The undersigned continues to discourage
Plaintiff from filing such documents as they cannot and will not be considered by this
Court.
C. Misfiled Motion To Amend Complaint
Last, Plaintiff has filed a “Motion to Amend Complaint” (Doc. 55) that bears the
caption of this case.

However, the body of the motion makes clear that Plaintiff

intended to file his motion in a separate case that was more recently filed by Plaintiff
against different Defendants and concerning an entirely different incident. “Plaintiff now
petitions the court to ammend [sic] a most recent complaint that was mailed to this
district court, 7/22/16.” (Doc 55, PageID 293).
The Court takes judicial notice of the fact that the case to which Plaintiff refers is
Burfitt v. Mahlman, Case No. 1:16-cv-776, a case that has been assigned to U.S.
District Judge Michael R. Barrett and U.S. Magistrate Judge Karen L. Litkovitz. On
September 20, 2016, Judge Litkovitz filed a Report and Recommendation that
recommended dismissal of that case based upon a lack of prosecution. On September

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28, 2016, Mr. Burfitt filed objections to that Report and Recommendation, which
objections remain pending before Judge Barrett.
III.

Conclusion and Order

For the reasons stated, IT IS ORDERED THAT:
1. Plaintiff’s construed motion for discovery/inspection (Doc. 54) is DENIED in
part except that Defendants shall respond to the construed written request for
the physical dimensions of the two rooms in which the incidents that remain
the basis of this lawsuit occurred;
2. Plaintiff’s motion to amend/correct his complaint (Doc. 55) is DENIED as
improperly filed in this case, but the Clerk of Court is directed to re-file the
same motion in Case No. 1:16-cv-776 for further review as appropriate.

/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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